The State Of Gujarat vs Sajid @ Rabdi Hanif Jamal Sheikh
2022 Latest Caselaw 1388 Guj

    R/CR.A/2207/2006                                CAV JUDGMENT DATED: 08/02/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 2207 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== THE STATE OF GUJARAT Versus SAJID @ RABDI HANIF JAMAL SHEIKH ========================================================== Appearance:

MR.HARDIK B SHAH(3751) for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 08/02/2022

CAV JUDGMENT

1. This Appeal is filed by the appellant - State of Gujarat under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgment and order dated 20.09.2006 passed by the Sessions Judge, Panchmahals at Godhra in Sessions Case No.95 of 2006 acquitting the respondent - original accused from the offence punishable under sections 332, 333, 286 and 427 of Indian Penal Code and under

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section 135 of Bombay Police Act.

2. The case of the prosecution case is that

The prosecution case in brief is that the complainant Ramubhai Bijalbhai Charel, Unarmed Constable (Buckle No.1556) lodged the complaint against the accused to the effect that on 3/4/2006 at about 20:30 hours, Lunawada Police arrested the accused in C.R. No.I-28/2006 for the offences punishable under Sections 457, 380, 411 of the Indian Penal Code. It is the further case of the prosecution that on 4/5/2006, PSI, Lunawada Police Station, complainant, Police Constable Kanubhai, Police Constable Mahendrabhai and Police Constable Abhesinh took the accused at their Police Station for inquiry in the aforesaid offences. During the inquiry, the accused got excited and attacked on the complainant with the stick and injured the complainant. The accused also gave fist blows on the mouth of the complainant and one teeth complainant is also broken. The accused had also torn the uniform of the complainant. At that time, the other Police personnel came to the rescue and defend complainant from further beating. As, the accused had beaten the complainant, when the complainant was duty with stick and injured the complainant, the complainant had lodged the complaint against the accused with Lunawada Police Station, which was registered a numbered as C.R. No.I-33 of 2006. The Police, thereafter prepared a Panchnama of the place of the

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offence and the Medical Certificate of the treatment was also obtained and after investigation, the Police submitted chargesheet against the accused for the offences punishable under Sections 332, 333, 186, 427 of the Indian Penal Code and Section 135 of the Bombay Police Act in the Court of Judicial Magistrate First Class, Lunawada. As the Offences are exclusively triable by the Court of Sessions, the same was transferred to the Court of the learned Sessions Judge, Panchmahals-Godhra, which was ultimately registered and numbered as Sessions Case No.95/2006, who on the conclusion of the trial by judgment and order dated 20/9/2006 acquitted the accused of the offences with which he was charged.

3. Being aggrieved by and dissatisfied with the aforesaid judgement and order of acquittal, present appeal has been filed by the appellant - State.

4. Learned APP Mr.R.C. Kodekar for the appellant State has vehemently argued that the Sessions Court has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. He has further submitted that the Sessions Court has erred in acquitting the respondents - accused from the charges levelled against him. He has further argued that the prosecution has proved that the respondent has committed offence under sections 332, 333, 186 and 427 of Indian Penal Code and under section 135 of Bombay Police Act. He has further argued

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that Sessions Court has acquitted the respondent accused merely on some minor contradictions and omissions in the evidence of the witnesses. He has further argued that the trial court has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. He has further argued that the offence punishable under sections 332, 333, 186 and 427 of Indian Penal Code and under section 135 of Bombay Police Act, is made out, however, the same is not believed by the Sessions Court. He has further argued that though the prosecution witness has supported the case of the prosecution, the trial court not believed their evidence and acquitted the accused erronously.

Making above submissions, he has requested to allow the present appeal.

5. Mr.Hardik Shah, learned advocate for the respondent - original accused has submitted that there is hardly any substance in the submissions of learned APP. There is no evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. There are inherent lecuna in the investigation. The officer who lodged complaint of beating, himself has investigated the offence. Station diary was not produced and no lock-up diary was produced before the trial court. The investigating officer was interested witness.

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There is no evidence that the complainant was present at the place of the offence has been placed on record. Even the alleged injury on the back is also rightly not believed by the trial court

Making above submissions, he has requested to dismiss the present appeal.

6. Heard advocates for the respective parties and perused the impugned judgement and order of acquittal and re- appreciated the entire evidence on record.

7. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.

8. On re-appreciation of the evidence on record, it

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appears that the complainant is police constable and eye witnesses are also police constable. The investigating officer is Police Sub Inspector, who is eye witness to the incident. As per the case of the prosecution on 3/4/2006 at 1.00 p.m. the accused was brought to Lunawada Police Station in connection with CR No.I-28 of 2006 for inquiry purpose and at 1.30 p.m. the accused assaulted and attacked upon the complainant, who was sitting in the chair and the accused was standing behind his chair and the accused has beaten him with stick on the back and the hands.

9. As per the Panchnama, the incident has happened in the chamber of PSI and the chamber is admeasuring 10 X 10 feet. The chair of the PSI was on the northern direction and the door is on south direction and on east direction, there was small cupboard. Opposite the chair of the PSI, there was a big table. Further, it appears from the panchnama that in front of table, there were chairs for visitors. As per the deposition of the prosecution witnesses, the complainant was sitting in one of the chairs and the accused was sitting behind the chair. As per the evidence of the witnesses, over and above the complainant, three to four other police personnel were also present in the chamber of the PSI. In such circumstances, it is not believable that the accused who was surrounded by 3 to 4 police personnel along with one PSI in the chamber of 10 X 10 feet can attack on the complainant and sustain 7 to 8 injuries. For the sake of argument, if it is believed that the accused tried

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to assault on the complainant, there were 3 to 4 police personnel and one PSI in the chamber and they would have stopped and apprehended the accused immediately. In such circumstances also, it is not possible that the accused may cause 7 to 8 injuries. In this case, to prove the injuries, medical officer has been examined, who has given the certificate and as per the medical certificate there were finger marks on the neck of the complainant. However, it is not the case of the complainant either in the complaint or in his deposition that the accused had caught hold his neck and pressed his neck. Therefore, the injury certificate issued by the medical officer is not believable and even deposition of the medical officer is also not believable. It appears that the injury certificate has been issued by the medical officer to faavour the police officer.

10. Further as per the medical certificate, there were abrasion on the backside of the complainant. As per the case of the complainant he was sitting in the plastic chair with support of his back to the chair and the accused fell down the chair and inflicted stick injury. However, had the stick been inflicted, the injury would not be possible on the backside of the complainant. In case of falling the complainant with chair by the accused from front side, the backside of the complainant would be on the earth, and it is not possible to inflict injury on the backside of the complainant, as the backside of the complainant would be on earth, as stated hereinabove. Even the injury of

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abrasion is linear abrasion which is not possible by stick. It is also the case of the complainant that due to assault, 1/3rd teeth of the complainant has broken. Had the accused gave fist blow on the teeth of the complainant, entire teeth would have broken but it is not possible that only 1/3rd teeth can be broken. It appears that the medical certificate has been issued by the Medical Officer to support the complainant and the medical certificate is not consistent with the injuries alleged by the complainant.

11. It has also come on record that the accused was apprehended in connection with CR No.28 of 2006 and the accused was beaten and hence the accused made complaint against the police personnel before the Lunawada Magistrate. Therefore, it is possible that the entire complaint is concocted against the accused.

12. From the record it appears that investigating officer has not produced station diary on record and same is fatal to the case of the prosecution. Further, even Lock-up Book is also not produced on record to substantiate when the accused was apprehended in connection with CR No.I-28 of 2006. Even the investigating officer is interested witness and eye witness, however he has investigated the offence as investigating officer instead of becoming an eye witness.

13. Considering the overall evidence on record, I am of the opinion that the prosecution has not proved the case

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beyond reasonable doubt.

14. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-

"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court.

Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour

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and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the

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miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

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28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the

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earlier judgments, observed in para No. 36 as under:

"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

15. In that view of the matter, the Criminal Appeal being devoid of merits is dismissed.

(RAJENDRA M. SAREEN,J) R.H. PARMAR